Under SCA 1, yes is no and no is yes

Regrettably, Californians are accustomed to strange bills being introduced in the California Legislature. The designation of an official state dinosaur comes immediately to mind.

But others are not just strange, they are purposefully designed to fool the public. For example, Senate Constitutional Amendment No. 1, dealing with the peoples’ right to referendum, seeks to reverse the meaning of yes and no. Here’s the background:

As voters may recall, Senator Bob Hertzberg, D-Van Nuys was the author of a 2018 bill (Senate Bill 10) that sought to abolish cash bail in California. Like most states, California utilizes a cash bail system to allow release of detained criminal suspects before their trials. Defendants pay a cash bond to be released from jail pending trial with the promise to return to court for trial and hearings. The cash bond is repaid to suspects after their criminal trials are completed, no matter the outcome. SB 10 would have replaced the state’s cash bail system with risk assessments to determine whether a detained suspect should be granted pretrial release and under what conditions. But bail bond companies, along with groups representing victims and law enforcement, qualified a referendum of Senate Bill 10. In a referendum, voters act on a proposal exactly like their elected representatives. A yes vote approves the legislation and a no vote rejects it. Because SB 10 was highly unpopular with Californians due to their concern with the state’s increase in crime, it was not surprising that voters rejected it.

Not content to heed the will of the voters and their desire to retain the existing cash bail system, Sen. Hertzberg now seeks to alter the very way referendum votes are counted. His SCA 1 would count “yes” votes as rejecting the law and “no” votes as approving the law. This is an obvious attempt to confuse voters.

The proposal is also contrary to well-established case law. Courts have described the voters’ referendum power as being “the same as the Legislature’s approval of a bill. The power is to determine whether a legislative act should become law.

It is notable that the legislature’s own analysis of SCA 1 reveals what a radical departure it is from the norm: “According to a report by the National Conference of State Legislatures (NCSL), in 23 states, legislative acts may be repealed by a popular referendum, also called a ‘veto referendum.’ According to NCSL research of those states’ laws or practices, in the majority of states, including California, a ‘yes’ vote indicates that the voter approves of the law passed by the Legislature and wants it to remain in effect.”

It is true that a handful of states, including Alaska and Wyoming, depart from the norm with systems similar to what SCA 1 would require. But even here, the consequence of the vote is clearly spelled out. Again, the committee analysis notes that, “in Alaska the ballot label describes the law that is the subject of the referendum, then provides voters with the following prompt: ‘A yes vote rejects the law. A no vote approves the law. Should this law be rejected?’ Immediately after the prompt, a voter may mark either ‘yes’ or ‘no.’”

One final consideration on this issue is bound to make voters’ heads spin. As a proposed constitutional amendment, SCA 1 would have to go on the ballot. So voters would have to understand that voting “yes” on the proposal would flip the current practice on referendum votes to mean that a “yes” vote means “no” and a “no” vote means yes. On the other hand, voting “no” would retain the current system where a “no” vote means “no” and a “yes” vote means “yes.”

Welcome to the Alice in Wonderland world of the California Legislature.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.